NCS000446_IDDE Ordinance_20201218

Ordinance No. 08-0617-09
ORDINANCE CREATING ARTICLE Vlll OF THE TOWN'S CODE Of ORDINANCES
TITLED "ILLICIT DISCHARGE DETECTION AND ELIMINATION PROGRAM"
NOW, THEREFORE BE IT ORDAINED by the Town Council of the Town of Apex, that:
Section 1. Chapter 12 of the Apex Town Code is amended by the addition of Article
VIll to read as follows:
Article VIII. Illicit Discharge Detection and Elimination Program
Sec. 12-197. Purpose
The purpose of this article is to provide for the health, safety, and general welfare of the citizens
of the Town of Apex by controlling the introduction of pollutants into the Municipal Separate
Storm Sewer System (MS4) in order to comply with the requirements set forth in the National
Pollutant Discharge Elimination System (NPDES) Phase 11 permit effective July I, 2005. The
objectives of this article are:
(1) To reduce or prevent pollutants in the MS4 to the maximum extent practicable;
(2) To prohibit Illicit Connections and Discharges to the MS4;
(3) To prevent improper disposal of materials that degrade water quality; and
(4) To authorize all inspections, surveillance and monitoring procedures necessary to
ensure compliance with this ordinance.
See. 12-198. Definitions
For the purposes of this article, the following shall mean:
Best Management Practices (BMPs): schedules of activities, prohibitions of practices, general
good house keeping practices, pollution prevention and educational practices, maintenance
procedures, and other management practices, as approved by the Environmental Programs
Manager, to prevent or reduce the discharge of pollutants directly or indirectly to the MS4.
13MPs also include treatment practices, operating procedures, and practices to control site runoff,
spillage or leaks, sludge or water disposal, or drainage from raw materials storage.
Town: The Town of Apex, a North Carolina Municipal Corporation.
Town Manager: The Town Manager as appointed by the Town Council of the Town of Apex, or
his designee.
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Clean Water Act: The Federal Water Pollution Control Act (33 U.S.C. ' 1251 et seq.), and any
subsequent amendments thereto.
Facility: Any land use including, but not limited to, commercial, industrial and residential land
uses, and any other source including, but not limited to, motor vehicles and rolling stock that
directly or indirectly contribute, cause or permit the contribution of any discharge, illicit or
otherwise, to the MS4.
Hazardous Materials: Any material, including any substance, waste, or combination thereof,
which because of its quantity, concentration, or physical, chemical, or infectious characteristics
may cause, or significantly contribute to, a substantial present or potential hazard to human
health, safety, property, or the environment when improperly treated, stored, transported,
disposed of, or otherwise managed.
Illicit Discharge: Any direct or indirect Non-Stormwater Discharge to the MS4, except as
exempted in section 12-202 of this ordinance.
Illicit Connections: An Illicit Connection is defined as either of the following:
I) A Storm Drainage System which allows, or may allow, an Illicit Discharge to
enter the MS4; or
2) Any pipeline, ditch or other conveyance connected to the MS4 which has not been
documented in construction or site plans, a building permit, maps, or other equivalent
records by which the Town would have express notice of the existence and location of
the connection to the MS4.
Industrial Activity: Activities subject to NPDES Industrial Permits as defined in 40 CFR, Section
122.26 (b)(14).
Municipal Sepa1•ate Storm Seiver System (MS4): For purposes of regulation and not maintenance,
the MS4 includes all Storm Drain Systems, Watercourses and Waters of the State, as defined
herein, within the Town limits and any of the Town's extra territorial jurisdictions (ET!).
National Pollutant Discharge Elimination System (NPDES) Stormwater Discharge Permit: shall
mean a permit issued by EPA (or by a State under authority delegated pursuant to 33 USC
' 1342(b)) that authorizes the discharge of pollutants to waters of the United States, whether the
permit is applicable on an individual, group, or general area -wide basis.
Nan -Commercial Car Washing: Any occasional automotive washing performed by individuals or
groups without charging any fee or in exchange for a charitable donation. This shall include but
is not limited to car washes performed by local church groups, school groups, athletic teams,
youth organizations, and individuals at their place of residence.
Non-Stormwater Discharge: Any discharge to the MS4 that is not composed entirely of
stormwater.
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Person: means any individual or group of individuals, association, organization, partnership,
firm, corporation or other entity recognized by law, other than the Town and including a User, as
defined below.
Pollutant: Anything which causes or contributes to pollution. Pollutants may include, but are not
limited to: paints, varnishes and solvents; oil and other automotive fluids; hazardous and non-
hazardous liquids, solids and wastes; solid wastes, yard wastes, refuse, rubbish, garbage, litter,
and floatables; pesticides, herbicides and fertilizers; sewage, fecal coliform and pathogens;
dissolved and particulate metals; animal wastes; wastes and residues that result from constructing
a building or structure; other discarded or abandoned objects and accumulations; or any noxious
or offensive matter of any kind that may cause or contribute to pollution.
Premises: Any building, lot, parcel of land, or portion of land whether improved or unimproved,
including adjacent sidewalks and parking strips.
Storm Drainage System: Any publicly or privately owned Facility, including the MS4, whether
on the surface or subsurface, by which stormwater is collected and/or conveyed, including but
not limited to, Watercourses, Waters of the State, roads with drainage systems, Town streets,
gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins,
natural and human -made or altered drainage channels, reservoirs, and other drainage structures.
Stormwater: Any surface flow, runoff, and drainage consisting entirely of water from any form
of natural precipitation and resulting from such precipitation.
Environmental Programs Division: The Town department created to manage the Town's
Stormwater management program pursuant to NCGS § 160A-3 i I (10).
Environmental Programs Manager: The Town employee hired by the Town Manager to manage
the Town's Environmental Programs Division, or the Environmental Programs Manager's
designee.
Stormwater Pollution Prevention Plan (SPPP): A document which describes the BMPs and
activities to be implemented by a person or business to identify sources of pollution at a site and
the actions to eliminate or reduce pollutant discharges to the MS4 to the maximum extent
practicable.
User: shall mean any Person who owns real property on which a Facility is owned.
Wastewater: means any water or other liquid, other than uncontaminated stormwater, discharged
from a facility.
Watercourse: any channel, ditch, gully, swale, or stream, which sole purpose is to convey the
flow of water.
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Primary Watershed Protection? Overlay District (Water Supply Watershed): An area from which
water drains to a point of impoundment and where the water is then used principally as a source
for a public water supply.
Waters of the State: shall mean all streams, lakes, ponds, marshes, water courses, waterways,
wells, springs, reservoirs, aquifers, irrigation systems, drainage systems and all other bodies or
accumulations of water, surface or underground, natural or artificial, public or private, which are
contained within, flow through, or border upon the State of North Carolina or any portion
thereof.
See. 12-199. Acronyms.
The following acronyms when used in this Article shall have the designated meanings:
CFR- Code of Federal Regulations
DENR- North Carolina Department of Environment and Natural Resources
DEM- North Carolina Division of Environmental Management
DWQ — North Carolina Division of Water Quality
EPA- United States Environmental Protection Agency
NCGS- North Carolina General Statutes
Sec. 12-200. Jurisdiction and Scope of Authority.
The Illicit Discharge Detection and Elimination Program Ordinance, (hereinafter "the
Ordinance"), shall apply to all Facilities within the Town's corporate limits. All Users whose
Facility is subject to this Ordinance, regardless of whether the User's Facility is managed or
operated by another Person, shall comply with this Ordinance as well as any permits,
enforcement actions or orders issued hereunder. The Environmental Programs Division shall
administer, implement, and enforce the provisions of this ordinance. Any powers granted or
imposed on the Environmental Programs Manager may be delegated by the Environmental
Programs Manager to other Environmental Programs Division personnel or other designated
personnel as may be necessary. Nothing in this Ordinance shall be interpreted to impose an
obligation on the Town to construct, maintain, repair or operate a Storm Drainage System, or any
part thereof, located on another Person's property.
See.12-201. Abrogation.
This ordinance is not intended to repeal, abrogate, annul, impair, or interfere with any existing
agreements, covenants, rules, regulations or permits previously adopted or issued. However, if
any provisions or requirements of this ordinance conflict with any existing regulations or
ordinances, the more restrictive provisions shall apply.
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Sec. 12-202. Illicit Discharge and Connection Prohibitions.
(a) Illicit Discharges
(I) No person shall cause or allow the discharge, emission, disposal, pouring or
pumping directly or indirectly to any stormwater conveyance, the waters of the
State, or upon the land in manner and amount that the substance is likely to reach
a stormwater conveyance or the waters of the State, any liquid, solid, gas or other
substance other than stormwater; provided that non-stormwater discharges
associated with the following activities are allowed and provided that they do not
significantly impact water quality:
a. water line flushing.
b. landscape irrigation.
c. rising ground waters.
d. diverted stream Mows.
e. pumped ground water.
f. ground water infiltration to storm sewers.
g. discharges from potable water sources.
h. irrigation water.
i. foundation drains.
j. springs.
k. water from crawl space pumps and basement sump pumps.
1. footing drains.
o. Non-commercial car washing.
p. flows from habitats and wetlands.
q. street wash waters.
r. discharges from fire fighting activities.
s. discharges from dechlorinated swimming pools.
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t. discharges associated with emergency removal and treatment activities for
hazardous materials if authorized by the federal, state or local government on -
scene coordinator.
u. maintenance activities of the Storm Drainage System requiring flushing or
cleaning with potable water.
v. Illicit Discharge permitted under an NPDES permit, waiver, or waste discharge
order issued to the User and administered under the authority of the EPA, or
DWQ, provided that the User is in full compliance with all requirements of the
permit, waiver, or order and other applicable laws and regulations. Discharges
specified in writing by the Environmental Programs Manager as being necessary
to protect public health and safety or discharges that have been filtered through an
approved pretreatment system that consistently demonstrate no discharge of
pollutants.
w. Dye testing, but only if the User has notified the Environmental Programs
Manager at least twenty-four hours prior to the time of the test.
x. Wash water from the cleaning of exterior of buildings, including gutters,
provided that the discharge does not pose an environmental or health threat.
y. Yard waste may be placed inside the curb and along the street for collection by
the Town of Apex not more than 48 hours prior to the weekly scheduled
collection day provided the yard waste is placed at least 10 feet from any sturm
drain catch basin. The Environmental Programs Manager will adopt a standard
storm drainage catch basin cleanout schedule and maintenance program plan to
ensure that water quality is protected.
(2) if any of the above Illicit Discharge exceptions are found to be polluted and may
therefore negatively impact the quality of the Waters of the State, the polluted
Illicit Discharge exception shall be deemed unlawful and shall not be discharged
into the MS4. These conditions shall be determined by the Environmental
Programs Manager or designee. These polluted Illicit Discharges, though listed as
an exception above, shall be regulated as an Illicit Connection or Discharge.
(b) Illicit Connections.
(1) The construction, use, maintenance or continued existence of Illicit Connections
is prohibited. Except as provided in the following subsection, this prohibition expressly
includes, without limitation, Illicit Connections made in the past, regardless of whether the
connection was permissible under law or practices applicable or prevailing at the time of
connection.
(2) Where such connections exist in violation of this section and said connections
were made prior to the adoption of this provision or any other ordinance prohibiting such
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connections, the property owner or the person using said connection shall remove the connection
within one year following the effective date of this ordinance. However, the one-year grace
period shall not apply to connections which may result in the discharge of hazardous materials or
other discharges which pose an immediate threat to health and safety, or are likely to result in
immediate injury and harm to real or personal property, natural resources, wildlife, or habitat.
Sec. 12-203. Suspension of MS4 Access In Emergency Situations
When necessary to stop an actual or threatened discharge that is imminently dangerous or
prejudicial to the public's health or safety, the Environmental Programs Manager may, without
prior notice, order that a User's access to the MS4 be suspended. If the violator fails to comply
with this suspension order, the Environmental Programs Manager may take such steps as deemed
necessary to remove, abate or remedy the actual or threatened discharge. The User shall
reimburse the Town the full cost of such removal, abatement or remedy according to the terms of
section 12-207(c). The User may appeal the Environmental Programs Manager's decision
pursuant to section 12-208, but the User may not reconnect to the MS4 without the prior written
approval of the Town Manager.
Sec. 12-204. Right of Entry/Access to Facilities.
(a) The Environmental Programs Manager shall be permitted to enter and inspect Facilities
as often as may be necessary to determine compliance with this ordinance.
(b) Users shall allow the Environmental Programs Manager immediate access to all parts of
the Facility for the purposes of inspection, sampling and examining all discharges into the MS4
and for copying records that must be kept under the conditions of an NPDES permit or to enforce
compliance with any additional duties mandated by this ordinance, state or federal law.
(c) The Environmental Programs Manager shall have the right to install or to require the
User to install on any Facility such devices as are necessary in the opinion of the Environmental
Programs Manager, to monitor and/or sample the Facility's discharges into the MS4.
(d) The User shall maintain the Facility's sampling and monitoring equipment in a safe and
proper operating condition at the User's expense. All devices used to measure the flow and
quality of discharges to the MS4 shall be calibrated to ensure their accuracy.
(e) Upon the Environmental Programs Manager's request, a User shall immediately remove
any temporary or permanent obstruction to the safe and easy access to a Facility. The
obstruction shall not be replaced. The User shall bear the costs of clearing the access. If a User
has security measures in force which require proper identification and clearance before entry into
its premises, the User shall make the necessary arrangements to allow access to the
Environmental Programs Manager.
(f) If the Environmental Programs Manager has been refused access to any part of a Facility
and if the Environmental Programs Manager is able to demonstrate probable cause to believe that
the portion of the Facility to which access has been refused contains a discharge into the MS4
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and that there is a need to inspect and/or sample the discharge as part of a routine sampling and
inspection program or probable cause to believe that there is a condition, object, activity or
circumstance which legally justifies such a search or inspection of that property , then the
Environmental Programs Manager may seek issuance of an administrative search warrant
pursuant to NCGS § 15-27.2.
See. 12-205. Requirement To Prevent, Control, and Reduce Stormwater Pollutants by the
Use of Best Management Practices.
The Environmental Programs Manager may require BMP's for any Facility which may cause or
contribute to an Illicit Discharge to the MS4. All Users shall provide, at their own expense,
reasonable protection from Illicit Discharges into the MS4 through the use of these structural and
non-structural BMP's. Compliance with all terms and conditions of a valid NPDES permit
authorizing the discharge of stormwater associated with industrial activity, to the extent
practicable, shall be deemed compliant with the provisions of this section. These BMP's shall be
part of a SPPP as necessary for compliance with requirements of the NPDES permit.
Sec. 12-206. Notification of Spills.
Notwithstanding other requirements of law, as soon as any User has information of any known or
suspected Illicit Discharge into the MS4, the User shall take all necessary steps to ensure the
discovery, containment, and cleanup of such illicit Discharge. In the event of a known or
suspected Illicit Discharge of Hazardous Materials into the MS4, the User shall immediately
notify emergency response agencies of the occurrence via emergency dispatch services. In the
event of a non -hazardous Illicit Discharge, the User shall notify the Environmental Programs
Manager in person or by phone or facsimile no later than the next business day. Notifications in
person or by phone shall be confirmed by written notice addressed and mailed to the Town of
Apex Environmental Programs Division within three business days of the phone notice. If an
Illicit Discharge emanates from a commercial or industrial land use, the User shall also retain an
on -site written record of the discharge and the actions taken to prevent its recurrence. Such
records shall be retained for at least three years.
See.12-207. Enforcement.
(a) Notice of Violation.
Whenever the Environmental Programs Division finds that a User has violated this ordinance,
the Environmental Programs Division shall notify the User, in writing by registered or certified
mail, personal service or posting of said notice at the Facility where the alleged violation
occurred, that the User shall perform any or all of the following:
1. Install equipment or perform testing necessary to monitor, analyze and report on
the condition of the User's Storm Drainage System;
2. Eliminate illicit connections or discharges;
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3. Cease and desist all violating discharges, practices or operations;
4. Abate or remedy the Stormwater Pollution or contamination hazards and restore
any affected property;
5. Pay a Civil Penalty;
6. Implement source control or treatment BMP's.
If abatement of a violation andior restoration of affected property are required, the notice shall
set forth a deadline within which such remediation or restoration must be completed. Said notice
shall further advise that, should the User fail to meet the deadline, then representatives of the
Environmental Programs Division shall enter upon the Facility and are authorized to take any
and all measures necessary to abate the violation andior restore the Facility and the expense
thereof shall be charged to the User and collected pursuant to subsection (c) below. Refusal to
accept the notice shall not relieve the User of the obligations set forth herein.
(b) Civil Penalties.
Illicit Discharges. Any User or other Person, including, but not limited to, a
designer, contractor, agent or engineer, who, either directly or indirectly, allows,
participates in, or directs an Illicit Discharge shall be subject to civil penalties as
follows:
a. Yard Waste and Household Products less than 5 Gallons: Except as
permitted under 12-202(a)(1)(y), First time offenders who discharge into
the MS4 Yard Waste or 5 gallons or less of domestic or household
products, where the quantity actually discharged is considered ordinary for
household purposes shall be assessed a Category I Civil Penalty in an
amount set forth in the schedule of Civil Penalties. Each day's continuing
violation shall constitute a separate and distinct offense for the purpose of
assessing a Civil Penalty.
b. Household Products greater than 5 Gallons, Non-l-lousehold Products and
Unknown Volume and Nature: First time offenders who discharge into
the MS4 more than 5 gallons of domestic or Household Products, who
discharge substances generally not used in a home, including but not
Iimited to process waste water, or who cannot provide clear and
convincing evidence of the volume and nature of the substance
discharged, shall be assessed a Category 11 Civil Penalty. Each day's
continuing violation shall constitute a separate and distinct offense for the
purpose of assessing a Civil Penalty.
Waste Products and Bulk Sales: First time offenders who discharge into
the MS4 any substance that is a byproduct of a commercial or industrial
process or any substance that was purchased at a Bulk Sales location shall
be assessed a Category II Civil Penalty. Each day's continuing violation
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shall constitute a separate and distinct offense for the purpose of assessing
a Civil Penalty.
d. Repeat Offenders: A User who discharges into the MS4 in violation of
this ordinance more than once within a twelve month period, shall be
assessed a Civil Penalty at one category level higher than the category
assessed for a First Time Offender of the substance discharged. Each
day's continuing violation shall constitute a separate and distinct offense
for the purpose of assessing a Civil Penalty.
2. Illicit Connections. Any User found with an Illicit Connection and any other
Person, including, but not limited to, a designer, engineer, contractor, or agent
who allows, acts participates, directs or assists directly or indirectly in the
establishment of an Illicit Connection shall be subject to civil penalties as follows:
a. First time offenders shall be assessed a Category 11 Civil Penalty in an
amount set forth in the schedule of Civil Penalties. Each day's continuing
violation shall constitute a separate and distinct offense for the purpose of
assessing a Civil Penalty.
b. A User or Person who is found to have violated subsection 2(a) more than
once within a twelve month period shall be assessed a Category Ill Civil
Penalty in an amount set forth in the schedule of Civil Penalties. Each
day's continuing violation shall constitute a separate and distinct offense
for the purpose of assessing a Civil Penalty.
In the event the Town is fined by the State or Federal Governments resulting from
an Illicit Discharge or Connection made by a User or other Person, the User or
other Person at fault shall reimburse the Town for the full amount of the Civil
Penalty assessed by the State and/or Federal Governments as well as for the
abatement costs incurred by the Environmental Programs Division during the
investigation and restoration process pursuant to subsection (C) below.
4. Civil penalties collected pursuant to this ordinance shall be used or disbursed as
directed by law.
5. Any Civil Penalty assessed above shall be increased by twenty-five percent if the
violation of this ordinance occurs within the Primary Watershed Protection
Overlay District.
6. Schedule of Civil penalties. The following Civil Penalties shall be imposed, up to
the amount shown for each category, upon the User or Person found to have
violated this Ordinance. In determining the amount of the penalty, the Director of
Public Works or his designee shall consider:
a. The degree and extent of harm to the environment, public health and
public and private property.
b. The cost of remedying the damage.
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C. The duration of the violation.
d. Whether the violation was willful.
C. The prior record of the person responsible for the violation in complying
with this ordinance.
f The Town's enforcement costs and the amount of money saved by the
violator through his, her or its noncompliance.
Category I: Civil Penalty to not exceed $100.00 per day per violation
Note: In lieu of a civil penalty for fist time offenders, the Town Manager or his designee may
impose upon a violator, alterative compensatory actions, such as storm drain stenciling, creek
cleanup, etc.
Category II: Civil Penalty not to exceed $500.00 per day per violation
Category III Violation: Civil Penalty not to exceed $1,000.00 per day per violation
(c) Recovery of Costs and Fines.
As authorized by NCGS § 160A-193, the offender shall be liable to the Environmental Programs
Division for the Civil Penalty, all costs incurred by the Town while enforcing this ordinance,
including but not limited to abatement costs, remedying the damage caused by the illicit
discharge, restoring the Facility, sampling, clean-up, the Environmental Programs Division's
administrative costs, costs of court, and costs of litigation, to include reasonable attorney's fees.
Within 30 days after the Environmental Programs Division has completed its abatement of the
violation, restoration of the Facility and/or its investigation and inspection, the violating User or
Person will be notified of the Environmental Programs Division's total costs and the Civil
Penalty, if any. The total amount due shall be paid within 30 days of the date of notice. If the
amount due is not paid within 30 days, the charges shall constitute a lien on the land or premises
where the nuisance occurred. A lien established pursuant to this subsection shall have the same
priority and be collected as unpaid ad valorem taxes. The total amount due is also a Iien on any
other real property owned by the User within the town limits or within one mile of the town
limits, except for the Person's primary residence. A lien established pursuant to this subsection is
inferior to all prior liens and shall be collected as a money judgment. The User may avoid the
lien on any other real property owned by the User within the town limits or within one mile of
the town limits only if the User can show that the actual or threatened discharge was created
solely by another Person. In the event that the User is able to pass the liability onto another
Person, the other Person shall be liable to the Town pursuant to this section.
Sec. 12-208. Appeal of Notice of Violation
(a) Any Person receiving a Notice of Violation may appeal the Notice of Violation to the Town
Manager. The notice of appeal must be received by the Town Manager within 15 days from the
date of the Notice of Violation. Hearing on the appeal before the Town Manager shall take place
within 15 days from the date of receipt of the notice of appeal.
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(b) The decision of the Town Manager may be appealed to the Town Board of Adjustment. The
notice of appeal must be received by the Town Manager within 15 days from the date of the
Town Manager's decision pursuant to subsection (a) above. Hearing on the appeal before the
Town Board of Adjustment shall be scheduled by the Committee with at least 10 days notice to
the Person appealing. The decision of the Town Board of Adjustment shall be final.
Sec. 12-209. Enforcement Measures After Appeal
If the violation has not been corrected pursuant to the requirements set forth in the Notice of
Violation, or, in the event of an appeal, within 30 days of the final decision, then representatives
of the Environmental Programs Division shall enter upon the Facility and are authorized to take
any and all measures necessary to abate the violation and/or restore the Facility and the expense
thereof shall be charged to the User and collected pursuant to section 12-207(c). It shall be
unlawful for any User or Person to refuse to allow the Town or its designated contractor to enter
upon the Facility for the purposes set forth above.
Sec. 12-210. Injunctive Relief
It shall be unlawful for any person to violate any provision or fail to comply with any of the
requirements of this ordinance. If a person has violated or continues to violate the provisions of
this ordinance, the Town may petition for a preliminary or permanent injunction restraining the
person from activities which would create further violations or compelling the person to perform
abatement or remediation of the violation.
Sec. 12-211. Violations Deemed A Public Nuisance
In addition to the enforcement processes and penalties provided, any condition caused or
permitted to exist in violation of any of the provisions of this ordinance is a threat to public
health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily
abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise
compel the cessation of such nuisance may be taken.
Sec. 12-212. Remedies not Exclusive
The remedies listed in this ordinance are not exclusive of any other remedies available under any
applicable federal, state or local law and it is within the discretion of the Town to seek
cumulative remedies.
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Section 2. Effective Date. This ordinance shall be effective July I, 2008.
Introduced by Council Member: Mike Jones
Seconded by Council Member: Bill Jensen
This the 151h day of July, 2008.
ATTEST:
Georgia A. Evangelist, MMC
Town CIerk
APPROVED AS TO FORM:
Henry C. Fordham, Jr.
Town Attorney
s"Keith H. Weatherly
Mayor
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